I had both CNN and Twitter on yesterday all afternoon, looking for news about the Boston Marathon bombings. I have not done a rigorous analysis (nor will I, nor have I ever), but it felt to me that Twitter put forward more and more varied claims about the situation, and reacted faster to misstatements. CNN plodded along, but didn’t feel more reliable overall. This seems predictable given the unfiltered (or post-filtered) nature of Twitter.

But Twitter also ran into some scaling problems for me yesterday. I follow about 500 people on Twitter, which gives my stream a pace and variety that I find helpful on a normal day. But yesterday afternoon, the stream roared by, and approached filter failure. A couple of changes would help:

First, let us sort by most retweeted. When I’m in my “home stream,” let me choose a frequency of tweets so that the scrolling doesn’t become unwatchable; use the frequency to determine the threshold for the number of retweets required. (Alternatively: simply highlight highly re-tweeted tweets.)

Second, let us mute based on hashtag or by user. Some Twitter cascades I just don’t care about. For example, I don’t want to hear play-by-plays of the World Series, and I know that many of the people who follow me get seriously annoyed when I suddenly am tweeting twice a minute during a presidential debate. So let us temporarily suppress tweet streams we don’t care about.

It is a lesson of the Web that as services scale up, they need to provide more and more ways of filtering. Twitter had “follow” as an initial filter, and users then came up with hashtags as a second filter. It’s time for a new round as Twitter becomes an essential part of our news ecosystem.

I’d be blogging more, but I keep writing stuff and then realizing it’s wrong. I’d like to believe that that simply means I’m in a creative period, but it’s far more likely than I’m just wronger than usual, or possibly righter in recognizing my usual level of wrongness.

So, please just stare into this lovely pattern until you’re convinced you just read a highly insightful and 100% correct blog post…

Derek Khanna is giving a Berkman talk on trying to connect the dots so that policy-makers “get it.” “How do we even frame discussions about the economy and innovation?” Copyright law hasn’t been re-assessed in at least 15 yrs, he says. He begins with his bakcstory: He’s from Mass. Worked for Romney and Scott Brown. (Derek wrote the copyright reform report for the Republican Study Group.)

Rule 1: “Being right is just part of the battle.” Rule 2: “It’s less important what you say…It’s most important who says it.” Rule 3: “Control the framing of the issue.” E.g., we [copyright reformers] frame copyright very differently than does Capitol Hill.

Take SOPA. He quotes Adam Green saying it’s not a matter of right vs. wrong but old vs. new. Staffers had been warning about SOPA, but suddenly the public engaged. The result was astounding: Co-sponsors became opponents of the bill. Derek says it wasn’t Google that killed SOPA. It was the 3 million people reaching out to Congress that killed it. “People like Elizabeth Stark, Alexis Ohanian [reddit] and Aaron Swartz.” The RIAA and MPAA like to frame it as having lost to Google rather than having lost to the American people. (He points to a Mario Savio speech that begins “There’s a time when the operation of the machine becomes so odious…”) SOPA remains very much on Congress’ mind, he says.

The framing was “perfect”: SOPA will censor the Internet and inhibit innovation.

Most conversations about copyright are framed as: Piracy is rampant, costing American jobs. Content is a crucial export, “the only thing produced in US any more.” Copyright is thus good, but more copyright is better.

Derek set out to reframe it in his “Three Myths of Copyright.” At a panel he asked “Who thinks terrorism is bad? Who thinks the TSA is only the way to protect us?” Likewise, is copyright the only way to protect content when it makes 23M Americans into felons? He points to the difference between the original copyright law and the current one. To conservatives, it can be framed as looking like a wild divergence from the original intent.

The “Three Myths” memo went out and was supported by conservatives until 24 hours later when it was pulled. A few weeks later, Derek was fired. He’s continuing but he thinks that when you’re on the outside, you have to fight small, strategic battles.

Idea + Movement + Effort = Legislation

A few weeks ago the head of the copyright office endorsed many of the reforms in “Three Myths,” updating copyright for the digital generation. The day before the content industry made the old argument in Roll Call. The other side isn’t countering. The content lobby knows that Roll Call is read by Congress. We need similar expertise.

How do we start?

Don’t wait for the next SOPA. They’re going to be much subtler in how they do it next time. Sites are still being taken down, e.g., Megaupload. Also funding mechanisms were cut off for ThePiratesBay. Also, Google was forced to take down links to torrents, etc. So, why would they come up with another SOPA? Instead they’re using international treaties to codify the DMCA forever, using stock language that gets replicated in treaties. These treaties only require Senate approval, or through executive actions. Therefore, we have to be more activist.

We have to analyze existing law.

We need support from both the left and the right

We need to focus on areas of common interest where we can form a collective whole

Asymmetrical warfare: Where are we strong and they’re weak? Where have they overplayed their hand? E.g., if you want to take on copyright law, that’s not asymmetric because there’s a strong argument on the other side.

“We lack the institutional capacity to quickly intervene in the political process in the way the content industry has. We therefore need to be smarter and more tactical.” We should start with smaller battles. We should avoid the narrative of “fighting the Man,” that companies are evil, etc. That won’t win over a party that sees itself as a party of business. “Instead, foster a David v. Goliath narrative.” That media like that narrative.

We should not talk about piracy. And even if the DMCA needs to be replaced, that’s a non-starter on Capital Hill.

Derek’s first campaign was on cellphone unlocking, after the Librarian of Copyright said it was now illegal (i.e., ending the DMCA exemption) to enable your phone to be used on a different carrier. Unlocking would increase competition among carriers. Derek wrote an article for The Atlantic that pointed out that the technology for the blind also has to be exempted every three years, a clear example of how the system is broken. Derek expected this issue to be hard. It didn’t get any mainstream media attention. It has a $32M lobbying effort on the other side. “That’s a problem on Capitol Hill: We don’t have a lobby for the future.” IT requires making hypothetical arguments.

But as the argument went on, examples emerged. E.g., Republic Wireless offers very cheap connectivity, but it depends on users bringing in unlocked phones.

Derek started a White House petition that got 114,000 signatures, the largest at the time. In part this worked because of people’s prior experience with SOPA. There were positive arguments on Left and Right. Left: It’s a matter of fairness. Right: Property rights. Derek added to this the value of innovation as a cross-party value.

After the petition, the FCC announced an investigation, and the White House came out in favor of unlocking. Before that, Derek had urged Congressfolks to come out in favor of it, if only because he was worried that after Obama came out in favor of repeal, the right would take the other side. But shortly after Obama endorsed, some conservatives came out in favor. Bills were introduced in both chambers.

Unfortunately, we have no way of mobilizing the 114,000 people who signed the petition; the names couldn’t be captured.

Derek presented this at a conservative org and got called a Marxist. Fox Business also: “You’re just against contracts.” “When you take up an issue, you have to know where your third rails are.” Response: The contract is between you and your carrier; the feds shouldn’t be arresting people for violating a contract.

Why is it important? It’s the first time Congress has questioned the DMCA. We might get a hearing on it. Congress is unaware of the implications of the DMCA. It also helped Congress realize that international treaties are being used as a backdoor for these restrictions. It may affect the Trans-Pacific Partnership treaty. And it helped identify allies.

Bottom line: “A free society shouldn’t have to petition its govt every 3 years to allow access to tech.” It’s akin to free speech, he says.

On the CFAA: “The statute is terrible.” There’s consensus about this. “But no one has written about in Weekly Standard or Politico.” It hasn’t reached Congress’ attention. Most members of Congress think that the sky is falling when it comes to cybersecurity. Every time a cybersec bill comes up, Congress has experts telling them that we are in deep peril. “Essentially the arguments for CFAA are that we need to reduce the DoJ’s discretion.” You have to defeat that training. Meet with Rogers or McCain or the other cyber-hawks and convince them that the CFAA needs to be reformed, that we can target hacking with a more narrowly focused bill.

Q&A

Q: Can we try to drive a wedge in the opposition?

A: Yes. The RIAA’s and MPAA’s policies don’t foster innovation in their own industry. Over a 100 wireless carriers supported us on unlocking.

Q: You said that people who “get” tech are on the side of openness, etc. That optimistically suggests that if we educate people, they’ll take more common sense positions on tech.

A: Not entirely. Congress listens to people they trust, who are the RIAA, MPAA…

Q: …But even if Congressfolks fully understood tech, would the funds they get from the content industry still sway them?

A: Yes, some understand and still oppose us. But the ones who understand generally agree with us. The story is more complex: The MPAA/RIAA are very liberal, but the right still tend toward copyright protection.

Q: Why is the content industry so powerful, given the size of Google, etc.

A: AT&T and Verizon are both in the top ten of lobbying companies: $32M. Google spends about $6M on lobbying. “No tech company had a DC presence until Microsoft” when it was about to be broken up. Also, as the tech companies invest heavily to survive, say, patent law, why would you favor wholesale patent law change? Also, when the RIAA/MPAA sue kids, the money goes back into lobbying, not to the artists. They’re self-funding. But the tech industry has to justify why they’re spending money on lobbying.

Q: In Pakistan, piracy is rampant. Doesn’t that hurt innovation?

A: Piracy is real. But, those generally weren’t loss sales. The obsession with piracy is the problem.

Q: How about the role of public interest groups?

A: I’m a big fan of Public Knowledge and EFF, etc. But they need supplementing with more activist movements.

Q: If we focus on small victories, will people think we’re not doing enough? Will you have to keep winning bigger and bigger?

A: You can exist at a level for a while, if you’re strategic about it. Eventually you have to move on to bigger battles.

Q: How about the importance of multistake partnerships?

A: You need as many allies as you can. E.g., I’m interested in orphan works: in copyright but you can’t find the copyright holders. Our interests are in line with the RIAA.

A: Are we in a moment like the environmental movement before it formed under a single banner?

Q: I’m not an expert on the environmental movement. There are lots of lessons to be learned from them.

Q: Is there a schism in the conservatism over copyright reform?

A: I haven’t seen much of a schism. The best argument I’ve heard is the natural rights one: copyright ought to exist forever. But that’s not the system we’ve adopted. Our founding fathers rejected it. I’d like to build a cross-party coalition, but that’s a longtime goal.

Q: Did you get pushback on using the WH petition mechanism?

A: I got some from privacy folks.

Q: When we win a battle, the other side comes up with something more drastic. E.g., we won a first sale argument, but the right may be preparing something much more drastic. How can we avoid that?

A: I’m not sure they’re going to try to reverse the first sale doctrine, but we need to have our eyes open.

I liked the Mendeley guys. Their product is terrific — read your scientific articles, annotate them, be guided by the reading behaviors of millions of other people. I’d met with them several times over the years about whether our LibraryCloud project (still very active but undergoing revisions) could get access to the incredibly rich metadata Mendeley gathers. I also appreciated Mendeley’s internal conflict about the urge to openness and the need to run a business. They were making reasonable decisions, I thought. At they very least they felt bad about the tension :)

Thus I was deeply disappointed by their acquisition by Elsevier. We could have a fun contest to come up with the company we would least trust with detailed data about what we’re reading and what we’re attending to in what we’re reading, and maybe Elsevier wouldn’t win. But Elsevier would be up there. The idea of my reading behaviors adding economic value to a company making huge profits by locking scholarship behind increasingly expensive paywalls is, in a word, repugnant.

In tweets back and forth with Mendeley’s William Gunn [twitter: mrgunn], he assures us that Mendeley won’t become “evil” so long as he is there. I do not doubt Bill’s intentions. But there is no more perilous position than standing between Elsevier and profits.

I seriously have no interest in judging the Mendeley folks. I still like them, and who am I to judge? If someone offered me $45M (the minimum estimate that I’ve seen) for a company I built from nothing, and especially if the acquiring company assured me that it would preserve the values of that company, I might well take the money. My judgment is actually on myself. My faith in the ability of well-intentioned private companies to withstand the brute force of money has been shaken. After all this time, I was foolish to have believed otherwise.

MrGunn tweets: “We don’t expect you to be joyous, just to give us a chance to show you what we can do.” Fair enough. I would be thrilled to be wrong. Unfortunately, the real question is not what Mendeley will do, but what Elsevier will do. And in that I have much less faith.

Al Jazeera asked me to contribute a one-minute video for an episode of Listening Post about how McLuhan looks in the Age of the Internet. They ultimately rejected it. I can see why; it’s pretty geeky. Also, it’s not very interesting.

Anil puts up an icon that is a symbol of privately-owned public spaces in New York City. Businesses create these spaces in order to be allowed to build buildings taller than the zoning requirements allow. These are sorta kinda like parks but are not. E.g., Occupy isn’t in Zuccotti Park any more because the space is a privately-own public space, not a park. “We need to understand the distinction” between the spaces we think are public and the ones that are privately owned.

We find out about these when we transgress rules. We expect to be able to transgress in public spaces, but in these privately-owned spaces we cannot. E.g., Improv Everywhere needs to operate anonymously to perform in these spaces. Anil asks us to imagine “a secretive, private ivy league club.” He is the son of immigrants and didn’t go to college. “A space even as welcoming as this one [Harvard Berkman] can seem intimidating.” E.g., Facebook was built as a private club. It welcomes everyone now, but it still doesn’t feel like it’s ours. It’s very hard for a business to get much past its origins.

One result of online privately-owned public spaces is “the wholesale destruction of your wedding photos.” When people lose them in a fire, they are distraught because those photos cannot be replaced. Yet everyday we hear about a startup that “succeeds” by selling out, and then destroying the content that they’d gathered. We’ve all gotten the emails that say: “Good news! 1. We’re getting rich. 2. You’re not. 3. We’re deleting your wedding photos.” They can do this because of the terms of service that none of us read but that give them carte blanche. We tend to look at this as simply the cost of doing business with the site.

But don’t see it that way, Anil urges. “This is actually a battle” against the values of the early Web. In the mid to late 1990s, the social Web arose. There was a time when it was meaningful thing to say that you’re a blogger. It was distinctive. Now being introduced as a blogger “is a little bit like being introduced as an emailer.” “No one’s a Facebooker.” The idea that there was a culture with shared values has been dismantled.

He challenges himself to substantiate this:

“We have a lot of software that forbids journalism.” He refers to the IoS [iphone operating system] Terms of Service for app developers that includes text that says, literally: “If you want to criticize a religion, write a book.” You can distribute that book through the Apple bookstore, but Apple doesn’t want you writing apps that criticize religion. Apple enforces an anti-journalism rule, banning an app that shows where drone strikes have been.

Less visibly, the laws is being bent “to make our controlling our data illegal.” All the social networks operate as common carriers — neutral substrates — except when it comes to monetizing. The boundaries are unclear: I can sing “Happy Birthday” to a child at home, and I can do it over FaceTime, but I can’t put it up at YouTube [because of copyright]. It’s very open-ended and difficult to figure. “Now we have the industry that creates the social network implicitly interested in getting involved in how IP laws evolve.” When the Google home page encourages visitors to call their senators against SOPA/PIPA, we have what those of us against Citizens United oppose: we’re asking a big company to encourage people to act politically in a particular way. At the same time, we’re letting these companies capture our words and works and put them under IP law.

A decade ago, metadata was all the rage among the geeks. You could tag, geo-tag, or machine-tag Flickr photos. Flickr is from the old community. That’s why you can still do Creative Commons searches at Flickr. But you can’t on Instagram. They don’t care about metadata. From an end-user point of view, RSS is out of favor. The new companies are not investing in creating metadata to make their work discoverable and shareable.

At the old Suck.com, hovering on a link would reveal a punchline. Now, with the introduction of Adlinks and AdSense, Google transformed links from the informative and aesthetic, to an economic tool for search engine optimization (SEO). Within less than 6 months, linkspam was spawned. Today Facebook’s EdgeRank is based on the idea that “Likes” are an expression of your intent, which determines how FB charges for ads. We’ll see like-spammers and all the rest we saw with links. “These gestural things that were editorial or indicators of intent get corrupted right away.” There are still little islands, but for the most part these gestures that used to be about me telling you that I like your work are becoming economic actions.

Anil says that a while ago when people clicked on a link from Facebook to his blog, FB popped up a warning notice saying that it might be dangerous to go there. “The assumption is that my site is less trustworthy than theirs. Let’s say that’s true. Let’s say I’m trying to steal all your privacy and they’re not.” [audience laughs] He has FB comments on his site. To get this FB has to validate your page. “I explicitly opted in to the Facebook ecology” in part to prove he’s a moderate and in part as a convenience to his readers. At the same time, FB was letting the Washington Post and The Guardian publish within the FB walls, and FB never gave that warning when you clicked on their links. A friend at FB told Anil that the popup was a bug, which might be. But that means “in the best case, we’re stuck fixing their bugs on our budgets.” (The worst case is that FB is trying to shunt traffic away from other sites.)

And this is true for all things that compete with the Web. The ideas locked into apps won’t survive the company’s acquisition, but this is true when we change devices as well. “Content tied to devices dies when those devices become obsolete.” We have “given up on standard formats.” “Those of us who cared about this stuff…have lost,” overall. Very few apps support standard formats, with jpg and html as exceptions. Likes and follows, etc., all use undocumented proprietary formats. The most dramatic shift: we’ve lost the expectation that they would be interoperable. The Web was built out of interoperability. “This went away with almost no public discourse about the implications of it.”

The most important implication of all this comes when thinking about the Web as a public space. When the President goes on FB, we think about it as a public space, but it’s not, and dissent and transgression are not permitted. “Terms of Service and IP trump the Constitution.” E.g., every single message you put on FB during the election FB could have transformed into its opposite, and FB would be within its ToS rights. After Hurricane Sandy, public relief officials were broadcasting messages only through FB. “You had to be locked into FB to see where public relief was happening. A striking change.”

What’s most at risk are the words of everyday people. “It’s never the Pharaoh’s words that are lost to history.” Very few people opt out of FB. Anil is still on FB because he doesn’t want to lose contact with his in-laws. [See Dan Gillmor’s talk last week.) Without these privately-owned public spaces, Anil wouldn’t have been invited to Harvard; it’s how he made his name.

“The main reason this shift happened in the social web is the arrogance of the people who cared about the social web in the early days…We did sincerely care about enabling all these positive things. But the way we went about it was so arrogant that Mark Zuckerberg’s vision seemed more appealing, which is appalling.” An Ivy League kid’s software designed for a privileged, exclusive elite turned out to be more appealing than what folks like Anil were building. “If we had been listening more, and a little more open in self-criticism, it would have been very valuable.”

There was a lot of triumphalism after PIPA/SOPA went down, but it took a huge amount of hyperbole: “Hollywood wants to destroy the First Amendment, etc.” It worked once but it doesn’t scale. The willingness to pat ourselves on our back uncritically led us to vilify people who support creative industries. That comes from the arrogance that they’re dinosaurs, etc. People should see us being publicly critical of ourselves. For something to seem less inclusive than FB or Apple — incredibly arrogant, non-egalitarian cultures — that’s something we should look at very self-critically.

Some of us want to say “But it’s only some of the Web.” We built the Web for pages, but increasingly we’re moving from pages to streams (most recently-updated on top, generally), on our phones but also on bigger screens. Sites that were pages have become streams. E.g., YouTube and Yahoo. These streams feel like apps, not pages. Our arrogance keeps us thinking that the Web is still about pages. Nope. The percentage of time we spend online looking at streams is rapidly increasing. It is already dominant. This is important because these streams are controlled access. The host controls how we experience the content. “This is part of how they’re controlling the conversation.” No Open Web advocate has created a stream that’s anywhere near as popular as the sites we’re going to. The geeks tend to fight the last battle. “Let’s make an open source version of the current thing.” Instead, geeks need to think about creating a new kind of stream. People never switch to more open apps. (Anil says Firefox was an exception.)

So, what do we do? Social technologies follow patterns. It’s cyclical. (E.g., “mainframes being rebranded as The Cloud.”) Google is doing just about everything Microsoft was doing in the late 1990s. We should expect a reaction against their overreach. With Microsoft, “policy really worked.” The Consent Decree made IE an afterthought for developers. Public policy can be an important of this change. “There’s no question” that policy over social software is coming.

Also, some “apps want to do the right thing.” Anil’s ThinkUp demonstrates this. We need to be making apps that people actually want, not ones that are just open. “Are you being more attentive to what users want than Mark Zuckerberg is?” We need to shepherd and coach the apps that want to do the right thing. We count on 23 yr olds to do this, but they were in 5th grade when the environment was open. It’s very hard to learn the history of the personal software industry and how it impacted culture. “What happened in the desktop office suite wars ?” [Ah, memories!] We should be learning from such things.

And we can learn things from our own data. “It’s much easier for me to check my heart-rate than how often I’m reading Twitter.”

Fortunately, there are still institutions that care about a healthy Web. At one point there was a conflict between federal law and Terms of Service: the White House was archiving coments on its FB wall, whereas FB said you couldn’t archive for more than 24 hrs.

We should remember that ToS isn’t law. Geeks will hack software but treat ToS as sacred. Our culture is negatively impacted by ToS and we should reclaim our agency over them. “We should think about how to organize action around specific clauses in ToS.” In fact, “people have already chosen a path of civil disobedience.” E.g., search YouTube for “no infringement intended.” “It’s like poetry.” They’re saying “I’m not trying to step on your toes, but the world needs to see this.” “I’m so inspired by this.” If millions of teenagers assembled to engage in civil disobedience, we’d be amazed. They do on line. They feel they need to transgress because of a creative urge, or because it’s speech with a friend not an act of publishing. “That’s the opportunity. That’s the exciting part. People are doing this every single day.

[I couldn’t capture the excellent Q&A because I was running the microphone around.]

The latest podcast in the Digital Campus series focuses solely on the current state of the Digital Public Library of America. The discussion includes Dan Cohen who has just accepted the position of Executive Director of the DPLA, which is just wonderful news. Not only does he have a rare combination of skills and experiences — ever hear of Zotero, hmm? — but he is also — and there’s no other way of putting this — nice.

Dan explains what the DPLA is. Nick wonders if if the DPLA will hurt public libraries. I try to explain why I think it won’t. Amanda suggests the DPLA is the Mr. Potato Head of libraries. I thought it was a good discussion.